UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1312

NUVOX COMMUNICATIONS, INCORPORATED,

Plaintiff - Appellant,

and

NEWSOUTH COMMUNICATIONS CORPORATION,

Plaintiff,

versus

JO ANNE SANFORD, Chairman; J. RICHARD CONDER,

Commissioner; ROBERT V. OWENS, JR.,

Commissioner; SAM J. ERVIN, IV, Commissioner;

LORINZO L. JOYNER, Commissioner; JAMES Y.

KERR, II, Commissioner; MICHAEL F. WILKINS,

Commissioner (in their official capacities as

Commissioners of the North Carolina Utilities

Commission); BELLSOUTH TELECOMMUNICATIONS,

INCORPORATED,

Defendants - Appellees,

and

NORTH CAROLINA UTILITIES COMMISSION,

Defendant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. W. Earl Britt, Senior

District Judge. (5:05-cv-00207-BR)
2

Argued: November 29, 2006 Decided: July 12, 2007

Before MICHAEL and SHEDD, Circuit Judges, and David A. FABER, Chief

United States District Judge for the Southern District of West

Virginia, sitting by designation.

Judgment vacated and appeal dismissed as moot in part and not ripe

in part by unpublished per curiam opinion. 

ARGUED: Robert Jeffery Aamoth, KELLEY, DRYE & WARREN, L.L.P.,

Washington, D.C., for Appellant. Karen Elizabeth Long, Special

Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,

Raleigh, North Carolina; Edward Smoot Finley, Jr., HUNTON &

WILLIAMS, Raleigh, North Carolina, for Appellees. ON BRIEF: Henry

J. Campen, Jr., Melanie Black Dubis, PARKER, POE, ADAMS &

BERNSTEIN, L.L.P., Raleigh, North Carolina; John J. Heitmann,

Stephanie A. Joyce, KELLEY, DRYE & WARREN, L.L.P., Washington,

D.C., for Appellant. Roy Cooper, North Carolina Attorney General,

Grayson G. Kelley, Chief Deputy Attorney General, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees,

Commissioners. Christopher J. Ayers, HUNTON & WILLIAMS, Raleigh,

North Carolina, for Appellee BellSouth Telecommunications,

Incorporated.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

For the reasons explained below, we vacate the judgment

of the district court and dismiss this appeal as moot in part and

not ripe in part.

I.

This case involves a dispute between BellSouth

Telecommunications, Inc. (BellSouth) and NuVox Communications, Inc.

(NuVox) regarding the terms on which BellSouth can audit NuVox’s

use of certain telephone network elements called Enhanced Extended

Links (EELs). NuVox uses EELs of BellSouth pursuant to two

different interconnection agreements between the carriers. (We

will at times refer to one of the agreements as the NuVox Agreement

and the other as the NewSouth Agreement.) Both agreements allow

NuVox to convert higher-cost special access circuits to lower-cost

EELs provided that NuVox self-certify that it is using the circuits

to provide a “significant amount of local exchange service” as

defined by the Federal Communications Commission (FCC). J.A. 166,

731. When certain conditions are met, both the NuVox and NewSouth

Agreements grant BellSouth the right to audit NuVox to ensure that

it is complying with the local usage requirements. 

Plaintiff-appellant NuVox filed a verified complaint in

the district court on March 28, 2005, against defendants-appellees

BellSouth and the commissioners of the North Carolina Utility
4

Commission (NCUC) in their official capacities, seeking relief from

three orders issued by the NCUC in 2004 and 2005. In the first of

the three orders at issue, the NCUC decided that BellSouth was

entitled to conduct an audit (the NewSouth audit) of EELs use under

the terms of the NewSouth Agreement. In the Matter of BellSouth

Telecomms., Inc. v. NewSouth Commc’ns, Corp., Order Granting

Summary Disposition and Allowing Audit, Docket No. P-772, Sub 7

(Aug. 24, 2004). In the second order the NCUC denied a motion to

reconsider its order authorizing the NewSouth audit. Id., Order

Denying Motion for Reconsideration, Docket No. P-772, Sub 7 (Jan.

20, 2005). The third order issued by the NCUC authorized BellSouth

to conduct an audit (the NuVox audit) on EELs use under the NuVox

Agreement. In the Matter of the Enforcement of Interconnection

Agreement Between BellSouth Telecomms., Inc. and NuVox Telecomms.,

Inc., Order Granting Motion for Summary Disposition and Allowing

Audit, Docket No. P-913, Sub 7 (Feb. 21, 2005).

In its complaint in the district court, NuVox sought

declaratory and injunctive relief with respect to the three NCUC

orders. NuVox alleged that the NCUC had misinterpreted the terms

of both interconnection agreements in authorizing the audits.

Specifically, NuVox asserted that federal law incorporated into the

agreements requires: (1) that BellSouth “demonstrate a concern”

prior to being authorized to audit and (2) that NuVox be allowed to
5

challenge the independence of an auditor before an audit is

initiated.

The district court did not reach the merits of the

dispute because it concluded that NuVox’s complaint does not arise

under federal law. As a result, the court dismissed the complaint

for lack of subject matter jurisdiction under 28 U.S.C. § 1331.

NuVox appealed, arguing that a substantial question of federal law

is raised by the issue of whether the NCUC’s interpretation of the

interconnection agreements resulted in the denial of what NuVox

asserts are federal rights. NuVox argues in the alternative that

the district court had subject matter jurisdiction under Section

252(e)(6) of the Telecommunications Act of 1996, Pub. L. 104-104,

110 Stat. 56, codified at 47 U.S.C. § 251 et seq.

On March 27, 2007, after the case had been argued before

this court, NuVox submitted a Fed. R. App. P. 28(j) Notice of

Supplemental Authority, informing us of an FCC decision issued the

day before that bears on this appeal. The FCC issued a Memorandum

Opinion and Order on March 26, 2007, approving of the merger of

BellSouth with AT&T. FCC approval of the merger was contingent

upon a number of conditions including the requirement that:

AT&T/BellSouth shall cease all ongoing or threatened

audits of compliance with the Commission’s EELs

eligibility criteria (as set forth in the Supplemental

Order Clarification’s significant local use requirement

and related safe harbors, and the Triennial Review

Order’s high capacity EEL eligibility criteria), and

shall not initiate any new EELs audits.
6

In the Matter of AT&T Inc. and BellSouth Corp. Application for

Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and

Order, Appendix F at 149 (Mar. 26, 2007) (FCC Merger Order). In

its Rule 28(j) notice NuVox asserted that this merger condition

renders as moot the disputes surrounding both the NuVox audit and

the NewSouth audit. We requested and received supplemental

briefing on the issues of mootness and ripeness from the parties,

and we turn now to those issues.

II.

Federal courts have no jurisdiction to decide moot

questions. Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).

Because of the case or controversy requirement found in Article III

of the Constitution, “federal courts are without power to decide

questions that cannot affect the rights of litigants in the case

before them.” De Funis v. Odegaard, 416 U.S. 312, 316 (1979)

(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).

Both NuVox and BellSouth assert that the appeal of the

NCUC’s February 21, 2005, order in Docket P-913 authorizing the

NuVox audit is moot. Although the NCUC authorized an audit under

the NuVox Agreement more than two years ago, BellSouth never began

the audit as a result of an injunction issued by the district court

in this case. As a result, on February 16, 2007, BellSouth and

NuVox filed a joint motion in NCUC Docket P-913 requesting that the
7

NCUC vacate its February 2005 order. BellSouth and NuVox stated

the dispute arising from that order “is moot because BellSouth had

neither commenced nor completed the audit it was allowed to conduct

under the [Feb. 21, 2005] Order and the [FCC] merger condition bars

BellSouth from proceeding with that audit.” In light of the fact

that BellSouth no longer seeks to enforce the February 2005 order

in NCUC Docket P-913, we agree that this appeal as it relates to

that order has been mooted.

While the parties agree that a portion of this appeal is

moot, they contest the effect of the FCC Merger Order on the NCUC

orders issued in Docket P-772 interpreting the NewSouth Agreement.

In contrast to what occurred after the NCUC issued its ruling in

Docket P-913, NuVox did not seek an injunction barring BellSouth

from beginning the NewSouth audit authorized in Docket P-772. As

a result, the auditor contracted by BellSouth released its findings

on the NewSouth audit on November 11, 2004.

BellSouth contends that the NewSouth audit was concluded

when the auditor released its findings. NuVox argues that the

record before us shows that the audit was never completed because

the auditor’s report includes a “placeholder” exhibit for a letter

needed from NuVox that NuVox has not supplied. See NuVox’s

Supplemental Br. at 14-15, Appendix E. According to NuVox, the

letter could not be drafted because the auditor has never reviewed

and verified the results found with NuVox. The dispute between the
8

parties over the significance of the missing letter and of the

audit verification procedures in general is of considerable

importance because those questions may determine whether or not the

FCC Merger Order moots any dispute about the audit authorized in

Docket P-772.

As a result of this dispute, we conclude that the issues

in this appeal relating to the NCUC’s August 2004 and January 2005

orders in Docket P-772 are not ripe for review. Drawn from both

Article III limitations and prudential considerations, ripeness is

a justiciability doctrine designed “to prevent the courts, through

premature adjudication from entangling themselves in abstract

disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473

U.S. 568, 580 (1985). “To determine whether the case is ripe, we

balance the fitness of the issues for judicial decision with the

hardship to the parties of withholding court consideration.”

Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (internal

quotation omitted).

We have previously explained that a case “is fit for

judicial decision where the issues to be considered are purely

legal ones and where the agency rule or action giving rise to the

controversy is final and not dependent upon future uncertainties or

intervening agency rulings.” Charter Fed. Sav. Bank v. Office of

Thrift Supervision, 976 F.2d 203, 208 (4th Cir. 1992). This is not

the situation here. To determine whether there is still a
9

justiciable controversy between the parties, we would first have to

decide whether the NewSouth audit has already been completed.

Underlying this question are several disputed factual and legal

issues. It is not within our province, however, to settle the

factual disputes surrounding the audit verification procedures.

Furthermore, the considerations that favor withholding

review are not outweighed by any hardship that dismissing the

appeal may cause the parties. Significantly, we conclude that

dismissal for lack of ripeness will not prevent NuVox from raising

the same issues in the future should the appropriate trier of fact

determine that there remains a live dispute surrounding the

NewSouth audit. Another proceeding involving the NewSouth audit is

currently pending before the NCUC in its Docket P-1341, Sub 1. On

September 22, 2006, BellSouth filed a complaint under that docket

number asserting that the audit report released on November 11,

2004, shows that NuVox has breached the local usage requirements in

the NewSouth Agreement. The complaint in Docket P-1341 is based on

the NewSouth audit authorized by the NCUC in Docket P-772. Just as

it has before this court, NuVox has argued to the NCUC that the

NewSouth audit has never been completed. Thus, NuVox has urged the

NCUC to determine that the FCC Merger Order moots BellSouth’s

complaint in Docket P-1341. For its part, BellSouth has argued

that the Merger Order is inapplicable to the proceeding in Docket

P-1341 and that NuVox’s argument to the contrary must first be
10

adjudicated by the FCC and not the NCUC. This is so, BellSouth

argues, because the FCC retains exclusive jurisdiction to interpret

and enforce conditions contained in the Merger Order. The NCUC has

not ruled on these questions and has placed the proceedings in

Docket P-1341 in abeyance pending the outcome of this appeal.

We take no position at this point on whether the FCC or

the NCUC is the appropriate agency to determine these matters in

the first instance. At any rate, only after a threshold

determination has been made as to whether the NewSouth audit was

completed, or is instead ongoing or threatened, will it be clear

whether BellSouth can maintain its complaint in Docket P-1341. If

the FCC Merger Order has mooted the proceedings in Docket P-1341,

NuVox would have no need to seek any sort of relief from the

federal courts in relation to the NewSouth audit. If, however, the

FCC Merger Order has not mooted the proceedings in Docket P-1341,

and the NCUC ultimately rules in favor of BellSouth/AT&T, NuVox

could challenge that decision in federal court on the same grounds

that it challenged the orders issued in Docket P-772. Accordingly,

we vacate the district court’s judgment that NuVox’s complaint in

this case does not raise a federal question, and we then dismiss

the present appeal. In vacating the judgment of the district
11

court, we are offering no opinion on the merits of the

jurisdictional questions that were raised and may again be raised

in a future action.

JUDGMENT VACATED AND

APPEAL DISMISSED AS MOOT IN PART

AND NOT RIPE IN PART